Theodore B. Olson, David Boies, and the federal constitutional right to same-sex marriage

Bush v. Gore may have divided the country, but it brought together the two attorneys arguing it: Theodore B. Olson of Gibson, Dunn & Crutcher, an assistant attorney general in the Reagan administration and future solicitor general for President George W. Bush; and David Boies of Boies, Schiller & Flexner, a former aide to Sen. Ted Kennedy, who represented the government in U.S. v. Microsoft. In the aftermath of the 2000 election the two men became friends, sharing summer bike trips with their wives and an interest in wine. And in 2009, they famously teamed up in the Proposition 8 case, winning back the right for same-sex couples to marry in California.

In January, Super Lawyers Magazine sat down with Boies and Olson at the Four Seasons in New York City for a wide-ranging discussion about marriage equality, law firm culture, what each looks for in a new hire and the future of the billable hour.

Q: Virginia’s Attorney General Mark Herring asked the federal courts to strike down the same-sex ban in Virginia today. Did he speak to either of you beforehand?

Theodore B. Olson: He called me yesterday. He called me to let us know what was going to happen in the case. One of the points he made is that he wanted Virginia to be on the right side of history. Virginia had been on the wrong side of history on a number of occasions historically, including interracial marriage. He felt that this is the state of George Washington, Thomas Jefferson and James Monroe. This is the state of Patrick Henry. It cannot be that the state and commonwealth of Virginia takes the wrong side in terms of equality of its citizens.

Q: So will someone else defend the ban?

Olson: The two clerks of the counties that are involved are continuing to defend the constitutionality of the measures. The issue that caused the standing question on appeal in California will not be an issue in this case.

Q: All of this is happening rather quickly: States are approving or refusing to defend against something that they banned less than 10 years ago.

David Boies: I don’t think either one of us has ever seen, in our lifetime, where an issue as contentious as this, as much of a wedge issue as this, has changed as rapidly. When we started the case, there were two or three states, [representing] less than 5 percent of the population of the United States, that permitted marriage equality. Now, more than half of all American citizens live in a state that permits marriage equality. When we started, a substantial majority of American citizens opposed marriage equality; today, less than five years later, a substantial majority of American citizens favor marriage equality.

Olson: I think it’s happening because [officials such as Mark Herring] represent all the people in their states, and they have a responsibility to the people who are victims of discrimination. This is not like enforcing, or not, some statute regulating economic conduct or speed limits. These are provisions that take sides against some of its citizens. I think people’s sense of what’s right under the Constitution, and their sense of conscience about the responsibility that they have to their citizens, are coming into play.

Q: Although we didn’t have that conscience 10 years ago as a country. So why now?

Boies: I think the single most important factor is that, starting in the ‘60s and ‘70s, gay and lesbian couples and individuals began to come out and be honest about their sexuality and their sexual orientation.

When I grew up, I didn’t know anybody who I knew was gay. I’m certain that I knew a lot of people who were gay, but you didn’t know they were gay because the extent of discrimination and hostility caused people—just as a matter of protectiveness—to try to deny, at least openly, their sexual orientation. What that meant was the field was wide open to caricature. [But] as more and more people had the courage, and it really took courage in those days, to acknowledge their sexual orientation openly, everybody else began to know people—members of their family, teachers, students, doctors, lawyers, engineers—who were gay. They realized that the myths they had grown up with just weren’t true. I think that as a whole new generation of people grew up knowing, sometimes from a fairly early age, people of differing sexual orientations, it became harder and harder, and for most people impossible, to use that as a basis for discrimination.

We’re both good at what we do, in part because we’re good at figuring out the argument the other side’s going to make so we can rebut them. This is a case in which we can’t figure out what the good argument is on the other side. The other side doesn’t have an argument.

Q: Last year, when you argued Prop 8 before the U.S. Supreme Court, Justice Scalia asked, “When did this become a federal constitutional right?” Is that still a legitimate question?

Olson: It’s a question. I said, “When did it become unconstitutional to prohibit people from different races of getting married? When did it become unconstitutional to make children go to different schools based upon their race?” Well, the Supreme Court decides cases when they get there, and when they understand the damage that discrimination does when it’s against classes of our citizens based upon their characteristics—the color of their skin or, in this case, their sexual orientation—then the Supreme Court decides it. But it’s because we realize that these are a class of people that are distinguished because of who they are—their immutable characteristics. You don’t choose to be homosexual or heterosexual. It’s a characteristic that’s a part of chemistry and biology. And we’re putting them into different boxes and treating them differently. We realize over time that that’s unconstitutional and that’s unacceptable.

We accepted slavery and we accepted discrimination and we accepted putting Japanese citizens in concentration camps in California. We tolerated discrimination against the Chinese in California. They helped build California and yet they couldn’t run a laundry. When did that become unconstitutional? That’s a rhetorical question that gets asked in Supreme Court arguments, and Justice Scalia, and I admire him enormously, is very good at it. But I think the answer is that it’s right now, here before your eyes, and you can declare it for the United States.

Q: Do you think your Virginia case, or the case in Utah or Oklahoma, is going to wind up with this court? They seem to not want to decide the matter.

Olson: You never can predict which case the Supreme Court’s going to take. There’s a Ninth Circuit case that was decided just this week, where the Ninth Circuit decided you couldn’t use preemptory challenges based upon a person’s sexual orientation. That could come to the Supreme Court. There’s a conflict in the circuits on that issue, and whether that case will get there first, which won’t decide the marriage issue, but it will decide the standard of review, which could be an important factor in deciding the marriage issue.

We don’t know when it will come. But it’s going to come, and it’s going to come pretty soon.

Q: What have you learned about each other from working together?

Boies: If there was one—I won’t say surprise—[it was] in the closing argument in the [California] trial court. The plaintiff obviously closes first, then the defendant closes and then the plaintiff gets a rebuttal. That rebuttal is probably the hardest single argument you have to make because you have to respond to all of the other side’s arguments. You have to do it without any preparation, and you have to do it in a limited period of time. The argument that Ted gave in rebuttal, in the closing arguments, I thought was the best 30-minute argument that I’ve heard in any court, anywhere, at any time in the last 50 years. He went through each of the points that the other side had made—each one of their legal and factual arguments—and ended it by describing the history of discrimination, and saying directly to the judge, “No one’s ever going to be in a better position to decide this than you.”

Every judge is, at some level, reluctant to take that first step. Somebody had to take the first step of saying segregation is wrong. Somebody had to take the first step at saying barring interracial marriage is wrong. Somebody had to take that first step. But it’s always hard.

I think that was important in getting the judge to the point of not only believing we were right, but being prepared to rule that we were right, and then write an extraordinary opinion that I think ought to be distributed in every high school and college civics class. Because it talks about the journey this country has taken toward the goals of equality that were articulated by our founders, but omitted to a great extent in practice by our founders. It’s a lesson in the history of our country and the culture of our country.

Q: How is Redeeming the Dream, your book about Prop 8, coming along?

Boies: Slowly. I’ve never had a book that didn’t come along slowly.

Olson: Two people writing a book is harder than one person writing a book, because you have to worry about the voice, you have to worry about how can we talk about ourselves without sounding too full of ourselves. Both of us remember reading books by lawyers that inspired us when we were deciding to become a lawyer. We’d like to live up to that.

Q: What is your process? Do you each write portions that you were involved in?

Olson: We’re doing a little of that. David just described for you his perception of when I was doing the closing argument. I’m going to do something from my perspective of sitting next to David and watching him—David is a genius and an artist—doing cross-examination. We’re both writing a chapter about why we took the case.

Q: Why did you take the case? Or do you want us to buy the book first?

Boies: [Smiles] Do both. We’ll tell you, but then buy the book.

Olson: I grew up in California, as did David. I’m proud to be a Californian because it’s a state where things often happen first. When you put people from different backgrounds and different places together, you get this chemistry that takes place. [You get] Silicon Valley, the movie industry, the aircraft industry.

When California enacted that statute, I thought, “That’s awful. That’s not California.” It’s not America, but it’s particularly not California. It’s a bad place for this to happen. It’s hurtful to people. Hurtful to loving, lovely people.

Boies: My whole experience as a lawyer has been in the context of trying to vindicate the promises that our Constitution and our founders made. I started out as a young lawyer as a volunteer with the Lawyers’ Committee for Civil Rights in Jackson, Mississippi, in the 1960s and 1970s. I brought lawsuits, including one against the Republican National Committee in 1986 to get an injunction against targeting minority districts with ballot security programs that were not uniformly applied. I believe that this issue, the issue of discrimination against gay and lesbian citizens, is, as the racial discrimination issue was the defining civil rights issue 50 years ago, the defining civil rights issue of this century.

This is the last group of our citizens that suffers substantial discrimination at the hands of their own government. Their own government is telling these people, “You’re second class. You’re not equal. You’re not entitled to enjoy the most basic relationship, that of marriage, that everybody else is able to enjoy.” The opportunity to participate in this battle has been the most meaningful litigation of my life.

Q: Mr. Olson, you were solicitor general when Lawrence v. Texas was argued before the Supreme Court in 2003. But you didn’t participate in that case. Why not?

Olson: It was a case by individuals challenging a Texas [anti-sodomy] statute, and the federal government wasn’t a party to that case. [We] decided that we didn’t have a substantial federal interest with respect to the constitutionality of those state statutes. I think there were some people in the administration that would have liked to have taken the side of Texas, but I wouldn’t have been comfortable at all with that.

Q: Did you know each other before Bush v. Gore?

Boies: Just as two people who are relatively experienced and somewhat prominent in the legal profession will know each other. I think it was the occasion of Bush v. Gore, when we were very involved, intensely, the two of us, [that we became friends]. You get to know somebody on the other side, in that kind of case, really well. You know their strengths, you know their weaknesses.

Olson: [Mock surprise] Weaknesses?

Boies: [Smiles] Red wine, uncomfortable shoes.

Olson: We’ve never had a disagreement that got personal. We have fun talking about things, but we mostly talk about other things than whether we would vote for a certain piece of legislation or different ways to solve the budget. That’s not much fun. As far as the practice of law is concerned, even when we’re on opposite sides I have enormous admiration for David’s legal skills. I find myself almost hypnotized when I’m watching David in court, because he’s so good, so persuasive, that I have to hold myself back from agreeing with him.

Boies: Let yourself go.

[Laughter]

Olson: You asked earlier about anything that surprised us about working together. One of the things that I thought was remarkable is that David’s team and my team worked together seamlessly. There were never any egos. There was never any putting one side in front of the other. There was never anybody saying, “I want to do this, you can’t do it.” Everybody was selflessly involved in putting this together.

Boies: Probably 30 people from Gibson, Dunn & Crutcher. We had about 20 people.

Olson: Not to mention the paralegals and the messengers and the people that were assembling documents.

Boies: Lawyers are not known as people without egos. But there wasn’t any ego apparent in the entire case. Everybody worked together.

Q: How would you describe your different law firm cultures?

Boies: Gibson Dunn has clearly been around a lot longer than Boies, Schiller & Flexner, and it’s clearly a lot larger. I’ve often, within our firm, talked about Gibson, Dunn & Crutcher as the kind of firm that demonstrates that you can get very large and still be competitive, collegial, [with a] high standard of excellence. It doesn’t have to get diluted. I think one of the challenges, frankly, for Boies, Schiller & Flexner is whether we will have the discipline to maintain the quality, the collegiality, the dedication, that we have now as we grow.

Q: Where does that discipline come from? Is it leadership?

Boies: I think it has to come from leadership. I think it has to come from Boies, Schiller & Flexner, or some of the younger partners that are coming up. Or at Gibson Dunn, whether it’s Ted or Randy Mastro or Bob Cooper. Bob is another lawyer I’ve been on the side of and against. Great integrity. Great trial skills.

Olson: He’s great on the golf course, too.

Boies: [smiles] Then he’s not working hard enough.

Q: Where do you see your firms in five years?

Boies: I think for five years, all we have to do is continue to do what we’re doing. The much harder task is what happens 20 years from now, or 30 years from now, when the entire leadership of the firm will have turned over.

Olson: Boies is the first name in that firm, so his responsibility is a little bit different. I’m co-chairman of our appellate practice group, which is something that I helped create. My responsibility is to create, by helping to hire at the law school level and the clerkship level, but also laterally wherever we have an opportunity, talented people that can carry our appellate practice group. For example, we’ll have five of our partners arguing cases in the Supreme Court this term. I’ll do one, but four other partners in our firm will handle, between them, six cases in the Supreme Court.

Boies: A firm that continues to attract the very best young people is a firm that’s going to succeed. Once you stop doing that, you begin to deteriorate, and that deterioration can accelerate as you go downhill.

Q: What advice would you have for a young man or woman looking to go to law school in this environment?

Boies: Even before they decide to go, I’d say, “Why are you going?” If you’re going to get a really good education that will teach you to think and solve problems, regardless of whether you practice law or not, that’s a good reason to go. If you’re interested in the justice system, that’s an even better reason to go. If you’re just trying to mark time, that’s a poor reason to go.

Olson: Don’t go to law school because you want to make lots of money. There are other ways to make lots of money. If you really get a bang out of practicing law and solving problems and trying to persuade and doing something very creative, and if you like the history and you like the law and you like the structure of our legal system, then you’re going to be spending your life doing things that you like. That’s the only reason to do it.

Q: Is that what you’re looking for when recent law school graduates try to get jobs at your firms?

Olson: Absolutely. You want people that really love to work, and want to work hard, and have manifested, through their achievement in college and law school, that they have the ability to think these problems through. It’s the enthusiasm. You can see it in their eyes.

Q: What do you think the future of law is with regard to the billable hour?

Olson: I like to do a fixed fee for whatever I can: a cert petition, an argument in the Supreme Court, handling an appeal. Then a client knows if it’s expensive, it’s expensive. Many, many clients, I’m finding, prefer it.

Boies: I think the billable hour is a problem. I think it creates a conflict of interest between the lawyer and the client. Lawyers actually do an extraordinary job of trying to avoid that conflict, [but] I think it’s always disadvantageous to have the economic incentives skewed. The client wants the case over as fast as possible. For the lawyer on an hourly rate, you want the case to continue from an economic standpoint. I think the less business a firm may have, the more that’s true. If I could give a client any advice, it would be pick a very busy law firm. Pick a law firm that has to fit you in, not a law firm that is out spending lots of marketing dollars to get you to hire them. Because I think that the busy law firm is a good law firm, but also it’s a law firm that is going to try to be efficient, because it needs to be efficient in order to service all of its clients.

I would rather that we always were on a fixed fee or a contingency fee as opposed to an hourly rate. For the last three years, we have had more than 50 percent of our revenues come from fees other than hourly fees. That was our goal when we started. It took us almost 15 years to get there.

Q: You both have children. What is the one thing you hope you’ve taught them?

Boies: One thing is really tough. I would say patience. Respect for others, respect for yourself.

Olson: I have two children and now three granddaughters. The granddaughters, one of them has become a nurse, one of them’s still in college and one of them’s still in high school. If I said one thing, it is that if you apply yourself and work hard, take education seriously, it gives you options. If you don’t do that, your choices are foreclosed for you. You want to take as many opportunities as you can in life to do what you want to do. You can open lots of doors by being a good student, learning when you have an opportunity for an education at the expense of your parents or your grandfather. Take that opportunity. For God’s sake, do it now. There’s lots of times to be on the playground or at dances; but for God’s sake, get an education so your freedom will be maximized.

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